《鹿特丹规则》下提单功能的缺失与重塑

传统提单的价值,是转让提单产生转让货物的效果。提单实现上述效果,极大地依赖于其债权凭证功能。《鹿特丹规则》通过引入意思自治原则,改变了提单债权功能的强制性,削弱了传统提单的信用,将对提单制度产生负面影响。《鹿特丹规则》的货物控制权制度,部分地强化了提单的债权凭证功能,但由于除斥期间和抗辩权的存在,不能完全恢复提单的信用。我国应当充分吸取《鹿特丹规则》的有益创新,尽力限制其消极影响。

On the Missing and Reshaping Function of Bill of Lading under the Rotterdam Rules

The traditional value of a bill of lading is that the transference thereof is legally deemed as the transference of the title of the goods covered thereby.In a view to realizing such purpose,the bill of lading needs to be legalized as a document of title.By importing the principle of autonomy of will,the provisions of the Rotterdam Rules delete the compulsory nature of the function of the bill of lading as a document of title.As a result,the credibility of the bill of lading has been dramatically weakened,which will throw negative impact on the traditional system of bill of lading.However,the Right of Control system under the Rotterdam Rules partly enhances the function of the bill of lading as a document of title.But due to the existence of time limit and some defenses,such system fails to completely reinstall the credibility of the bill of lading.The advantages of the above mentioned provisions of the Rotterdam Rules must be absorbed by Chinese maritime law while the disadvantages shall be carefully avoided in future legislations.